Who Is Safe in This Harbor? Rethinking Section 230 of the Communications Decency Act

Article excerpt

Legislative bodies and courts have long struggled to reconcile two sometimes conflicting interests: the state's interest in protecting the reputations of its citizens and society's interest in free and robust debate. For example, the constitutional privilege in libel is an attempt to strike a balance between these interests. The evolution of the privilege reflects changing views regarding what constitutes a proper balance.

The advent of the Internet created a different but related problem. The First Amendment interest in the balance was no longer related to a specific type of content, but rather a specific medium of expression. Instead of a concern that defamation law could have a chilling effect on "uninhibited, robust, and wide-open" (1) debate on public issues, the concern was that defamation law, as well as indecency law, privacy law, etc., would chill the development of the Internet.

To address this problem, Congress enacted a safe-harbor provision as part of the Communications Decency Act,. (2) Section 230 provided in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (3)

In the decade following passage of [section] 230, the Internet has developed into a major communication medium. It is now pervasive in our society, having a major impact on business, education, entertainment and social interaction.

However, this has not come without some cost. Just ask Kenneth Zeran, Christianne Carafano, the two female Yale law students now suing Autoadmit.com or, most recently, many of the students discussed on Juicycampus.com. They, among others, would almost certainly argue that the cost was too great.

I.

For many years, defamation was considered to be outside the reach of the First Amendment. (4) Then, in 1964 the Supreme Court extended limited First Amendment protection to defamation in its landmark decision in Times v. Sullivan (5). The Court began by noting "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The Court found that defamation law, even with the defense of truth available, could have a serious chilling effect on would-be critics of government conduct due to the difficulty and/or expense of proving the truth of their statements.

To reduce this chilling effect, the Court created a constitutional rule requiring public officials to prove actual malice as a prerequisite to receiving damages for a defamatory falsehood regarding their official conduct. The purpose of this rule was to provide adequate breathing space for discussion of public affairs, while protecting public officials from deliberate falsehoods.

After Sullivan, several decisions expanded the rule to cover public figures and those who were involved in a matter of public concern. In these cases the Court struggled with the question of exactly where to draw the line leading to plurality decisions that provided lower courts with little guidance. (6)

Finally, the basic parameters of the constitutional privilege in defamation were established in Gertz v. Robert Welch, Inc. (7) The Court began by describing two important societal interests: the First Amendment interest in robust and open debate and the state interest in protecting its citizens from wrongful harm to their reputations. It acknowledged that "[s]ome tension exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury." (8) The Court's balance created two classes of defamation plaintiffs: public officials/figures and private individuals.

The advent of the Internet raised new questions regarding the chilling effect of defamation law, as well as privacy law and restrictions on indecent material. …